COURT FILE NO.: FS-08-343270

DATE: 2012/02/03

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nabila Nashid v. Waheed Michael

BEFORE: Justice Herman

COUNSEL: Granville Cadogan, for the Applicant

Avra Rosen, for the Respondent

DATE HEARD: December 20, 2011; January 12, 2012

E N D O R S E M E N T

[1] By decision dated August 5, 2011, I found the applicant, Dr. Nashid, in contempt.

[2] Mr. Michael now seeks an order for costs and an order to set aside Dr. Nashid’s pleadings.

Background

[3] The reasons for the finding of contempt are set out in my decision of August 5, 2011. I provided Dr. Nashid with an opportunity to purge her contempt: she was required to provide the remaining disclosure by August 31, 2011 and a detailed affidavit with respect to any items she was unable to provide.

[4] Dr. Nashid is entitled to a hearing with respect to orders arising from the finding of contempt. A date for a hearing was set for November 4, 2011.

[5] On November 4, 2011, counsel for Dr. Nashid advised that Dr. Nashid could not attend due to medical problems but she should be available in about a week. The hearing was adjourned to November 16, 2011, peremptory to Dr. Nashid. I indicated in the endorsement that if Dr. Nashid intended to rely on medical evidence, she was required to provide a copy of it by November 11, 2011.

[6] Dr. Nashid did not attend on November 16, 2011. Her counsel said she was in a depressive state. A letter from a family physician, dated November 10, 2011, indicated that Dr. Nashid was under extreme mental stress and depressed. The doctor had advised Dr. Nashid to take some time off from all legal issues.

[7] I adjourned the hearing to December 6, 2011. Dr. Nashid was required to either attend or provide detailed medical evidence as to her inability to attend on November 4, 2011, November 16, 2011, and December 6, 2011. The medical evidence was to include a date by which it was expected Dr. Nashid would be able to attend and participate. A copy of the evidence was to be provided to counsel for Mr. Michael and the court by November 29, 2011. Nothing was provided to the court by November 29.

[8] Dr. Nashid did not appear on December 6, 2011. Her counsel was also unable to appear due to an injury. I adjourned the hearing to December 20, 2011. I indicated in my endorsement that the requirement for detailed medical evidence set out in the previous endorsements of November 4 and 16 still applied.

[9] A letter was presented from a psychiatrist, Dr. V. Gorguy, dated December 2, 2011. In the letter, Dr. Gorguy indicated that Dr. Nashid was dealing with multiple stressors resulting from the separation from her husband and was showing symptoms of major depression. In his clinical judgment, Dr. Nashid required therapy in addition to pharmacotherapy. He intended to refer her to the PTDS Unit at CAMH. He indicated that Dr. Nashid needed to be emotionally stable in order to deal with her legal issues.

[10] The hearing was adjourned to December 20, 2011.

[11] Dr. Nashid did not appear on December 20, 2011. Her counsel said that Dr. Nashid was going to have a further assessment but he did not know whether it had been scheduled. There was no indication that Dr. Nashid was receiving any therapy or treatment.

[12] With the agreement of Dr. Nashid’s counsel, costs were argued on December 20.

[13] Dr. Nashid’s counsel also agreed that Mr. Michael’s motion to strike Dr. Nashid’s pleadings would proceed on January 12, 2012, with or without Dr. Nashid’s presence.

[14] Dr. Nashid did not appear on January 12, 2012 but her counsel did. No further medical evidence was provided. I heard the motion to strike Dr. Nashid’s pleadings on that date.

Should Dr. Nashid’s pleadings be struck?

[15] Mr. Michael submits that Dr. Nashid’s pleadings should be struck for her failure to comply with court orders, her failure to purge her contempt and her failure to pay four outstanding cost orders.

[16] Mr. Michael maintains that Dr. Nashid’s non-compliance is significant. Dr. Nashid’s counsel acknowledges that her compliance has not been perfect but, in his submission, it is not a case of deliberate noncompliance.

[17] There are three orders dealing with disclosure prior to my decision of August 5, 2011 which are at issue: April 7, 2011; May 26, 2011; and July 28, 2011. The orders of April 7, 2011 and July 28, 2011 were made on consent. Dr. Nashid was represented by counsel on both those occasions.

[18] In my decision of August 5, 2011, I indicated that Dr. Nashid could purge her contempt if she provided the required disclosure by August 31, 2011. If there was information she was unable to provide by that date, she was required to use reasonable efforts to obtain the information. Furthermore, she was required to provide an affidavit by August 31, 2011, setting out each item she was unable to provide; what efforts she had made to obtain the information; and when she would be in a position to provide the information. If Dr. Nashid did not comply, Mr. Michael had leave to move to have her pleadings struck.

[19] There are also four outstanding cost orders: $250 ordered by Justice Goodman on March 23, 2010; $1,500 ordered by me on April 7, 2011; $5,000 ordered by me on May 26, 2011; and $3,500 ordered by Justice Wilson on September 15, 2011. The cost order of May 26, 2011, however, was to be paid out of the proceeds of sale of the home. The home has not been sold.

[20] It is not disputed that Dr. Nashid has not fully complied with these orders. She has also not taken advantage of the opportunity to purge her contempt: she has provided some disclosure but she never provided an affidavit with respect to the items she has not disclosed.

[21] Dr. Nashid provided some items on September 1 and 2, 2011. Her counsel addressed outstanding disclosure in a letter to Mr. Michael’s counsel, dated August 1, 2011.

[22] Leaving aside the items that are debatable (for example, the parties disagree as to whether some items were ever provided and there are other items, such as corporate tax returns and notices of assessment and lease agreements, which her counsel says do not exist), significant disclosure remains, including: an updated and complete financial statement, with supporting documentation; an income report for 2007-2010 in relation to Dr. Nashid’s dental practice; a copy of the real estate lawyer’s file; and rental income and expenses.

[23] In his letter of August 31, 2011, Dr. Nashid’s counsel indicated that the financial information that was needed in order to provide the updated financial statement was received on August 31, 2011 and the updated financial statement would be sent to Mr. Michael’s counsel on September 6, 2011. It was never sent. The only financial statement Dr. Nashid has provided in this litigation is dated July 30, 2009. That financial statement is incomplete: the income section is marked “TBD”.

[24] Dr. Nashid’s counsel also indicated in his letter that the tax return for 2010 would be available within two weeks of August 31, 2011; copies of notices of assessments would be provided once they became available; a break-down of rental income would be provided within two weeks; a break-down of rental expenses would be provided within two weeks; and he was awaiting a copy of the real estate lawyer’s file. None of these documents had been provided as of January 12, 2012. Indeed, no disclosure has been provided since September 2, 2011, with the exception of a mortgage statement which was provided on September 26, 2011. The majority of the items that are outstanding arise from the consent order of April 7, 2011.

[25] Although Dr. Nashid has provided some disclosure, she has never provided the affidavit she was required to provide with respect to the items she has not disclosed. There is a significant difference between an affidavit by a party addressing non-disclosure and a letter from counsel.

[26] In my opinion, Dr. Nashid’s non-compliance goes beyond “imperfect compliance”. Dr. Nashid has not complied with several orders, including the ones that were made on consent. It is a matter of particular concern that Dr. Nashid has not provided an updated financial statement, as she agreed to do and was ordered to do in April 2011. The only other financial statement that Dr. Nashid has provided, in July 2009, was incomplete.

[27] The doctors’ letters were presented to explain why Dr. Nashid was unable to appear at the hearing and why an adjournment was being sought. They were not provided as an explanation for her non-compliance. There is no indication or evidence from either Dr. Nashid or her doctors that she was or is unable to provide the required disclosure and affidavit; there is no indication that she is receiving treatment; and there is no indication of when Dr. Nashid might be able to participate in the proceedings or provide the required disclosure and affidavit.

[28] There is evidence that Dr. Nashid has continued to work. Mr. Michael swore an affidavit in which he said he had driven by Dr. Nashid’s dental practice on November 7, 9 and 12, 2011 at which times there was an “Open” sign. He said he saw Dr. Nashid’s car parked outside on November 12. This evidence has not been contradicted.

[29] Counsel for Dr. Nashid submits that I should take into consideration that Mr. Michael has not paid the mortgage since he moved into the home on August 31, 2011. However, regardless of whether this is the case, Mr. Michael’s non-payment of the mortgage does not in any way relieve Dr. Nashid of her obligation to comply with court orders.

[30] The authority to strike a pleading for non-compliance with orders is provided for in Family Law Rules 1(8) and 14(23). In addition, Rule 13(17) provides that the court may dismiss the party’s case if the party does not obey an order to serve and file a financial statement, including an updated financial statement.

[31] In Purcaru v. Purcaru, 2010 ONCA 92, [2010] O.J. No. 427 (C.A.), Lang J.A. noted, at para. 50, that the decision to strike pleadings and to determine the parameters of trial participation was a discretionary one. She cited the case of Sleiman v. Sleiman (2002), 2002 CanLII 44930 (ON CA), 28 R.F.L. (5th) 447 (O.A.C.), a case involving a refusal financial disclosure in which the motion judge determined that the party had demonstrated a “blatant disregard for the process and the orders of the court”.

[32] Lang J.A. also cited the decision of the Divisional Court in Vacca v. Banks (2005), 6 C.P.C. (6th) 22 (Ont. Div. Ct.) in which the plaintiff had repeatedly failed to comply with orders related to discovery and the progress of litigation. In that case, Ferrier J. noted that the master’s remedy of the dismissal of the action may be an appropriate sanction to recognize the court’s “responsibility for the administration of justice”.

[33] In Ablett v. Horzempa, 2011 ONCA 633, [2011] O.J. No. 4391 (C.A.), the Court of Appeal heard an appeal from an order striking the appellant’s pleadings and dismissing the appellant’s motion to change a final order for spousal support. The court indicated, at para. 7 that striking a pleading and denying a party the right to be heard on a motion is a “drastic remedy of last resort”. The Court of Appeal dismissed the appeal, noting that “The record demonstrates a consistent and unyielding pattern of noncompliance with court orders and a total disregard for the process of the court” and that, by his refusal to follow rules or obey orders, the appellant had chosen not to avail himself of “the numerous opportunities for meaningful participation that the ordinary process provides”.

[34] There comes a point at which the court cannot give any further indulgences, in the interests of fairness to the other side and the administration of justice. It has been more than nine months since the original disclosure order was made, on consent. Dr. Nashid has been given numerous opportunities to participate in the process, to provide disclosure and to purge her contempt but she has chosen not to take advantage of these opportunities, except to a limited extent. The doctors’ letters do not explain Dr. Nashid’s non-compliance with numerous court orders since April 2011 and do not explain her failure to purge her contempt.

[35] If Dr. Nashid wishes to participate in the litigation, the onus must now be on her to take affirmative steps. I recognize that striking a person’s pleadings is an extreme remedy. However, I do not see any alternative in view of Dr. Nashid’s continuing non-compliance and the lack of any indication or evidence from her that she intends to comply with the court orders, provide the necessary disclosure and participate in the process.

[36] The pleadings of Dr. Nashid are therefore struck. Mr. Michael has leave to proceed with an undefended trial after March 31, 2012.

[37] However, Dr. Nashid may apply to the court prior to March 31, 2012 to set aside the order to strike pleadings and the order for an undefended trial if she has produced a sworn, complete up-to-date financial statement and the remaining disclosure. If there are remaining items that Dr. Nashid is unable to provide, other than the financial statement, which must be provided, she will provide an affidavit in which she sets out each item she is unable to provide; why she is unable to provide it; what efforts she has made to obtain the item; and when she will be in a position to provide it.

Costs

[38] In my decision, dated August 5, 2011, I requested written cost submissions from both parties. I received written submissions from Mr. Michael but not from Dr. Nashid. Costs were argued before me on December 20, 2011, with additional argument on January 12, 2012.

[39] Mr. Michael seeks costs of the motions before me on July 28, 2011 as well as the costs arising from the preparation and appearances leading up to and including the appearance on January 12, 2012. He seeks costs on a full recovery basis because: Dr. Nashid was found in contempt of court; Dr. Nashid has acted in bad faith; and he was successful in obtaining the relief he sought.

[40] Counsel for Dr. Nashid submits that she should not have to pay costs because Mr. Michael has not paid the mortgage since he moved into the home. However, as noted above, any non-payment of the mortgage does not relieve Dr. Nashid of the requirement to comply with court orders.

[41] According to the bills of costs, Mr. Michael’s costs on a full recovery basis are: $12,404.34 ($11,950.88 for fees and HST; $453.46 for disbursements and HST) up to and including the argument of the motion on July 28, 2011; and $8,711.73 (fees and HST) for preparation and five attendances after August 5, 2011 up to and including January 12, 2012.

[42] It is, in my opinion, appropriate that Mr. Michael receive full recovery for the contempt motion. The motion was necessitated by Dr. Nashid’s continued non-compliance with a series of court orders. The court orders have still not been complied with in spite of the opportunity given to Dr. Nashid to purge her contempt.

[43] It is also appropriate that Mr. Michael receive full recovery for the preparation and attendances since August 5, 2011. The fact that it was necessary to have five attendances instead of one is wholly attributable to Dr. Nashid. The medical evidence which was provided was late and was inadequate. There has been no further compliance with the various orders with the exception of the production of some documents in September. The documents that her counsel indicated would be provided have not been provided.

[44] However, a portion of the proceedings on July 28, 2011 related to Mr. Michael’s motion to purchase a half-interest in the matrimonial home and to other matters which were resolved on consent. The costs related to these matters should be recoverable on a partial recovery basis only.

[45] I have reviewed the bills of costs. The amounts sought are not unreasonable given the amount of work that was involved and the number of court attendances. Junior lawyers performed a significant amount of the out-of-court work. The only item I would question is the claim for 8 hours for court attendance on July 28. That amount should, in my opinion, be reduced.

[46] Counsel for Dr. Nashid submits that Dr. Nashid is unable to pay the costs at this time. The only evidence in support of this submission is an e-mail from RBC, dated December 19, 2011 indicating that Dr. Nashid’s credit line was in arrears of $9,018.27 and her bank account was overdrawn by $4,807.90. However, there is no evidence by way of affidavit or financial statement from Dr. Nashid indicating that she has no other funds available to her. Indeed, one of the items that remains outstanding in her disclosure is an updated financial statement. The only sworn financial statement that has been filed is dated July 30, 2009, with the income section marked “TBD”. In his letter of August 31, 2011, Dr. Nashid’s counsel indicated that he had the information necessary to complete the financial statement and it would be provided on September 6. It was never provided.

[47] If a party seeks a postponement of the payment of costs on the basis of an inability to pay, the onus is on that party to provide evidence. There is no such evidence in this case, not even an up-to-date and complete financial statement.

[48] In the result, costs are to be paid by Dr. Nashid in the amount of $15,000, inclusive of HST and disbursements.

Herman J.

DATE: February 3, 2012